By Mitchell Skilling
An English intellectual property judge has rejected a contention that the manufacturers of a wooden rowing machine had no chance of arguing it to be a “work of artistic craftsmanship” within the meaning of the Copyright, Designs and Patents Act 1988.
WaterRower UK Ltd had originally raised an action against Liking Ltd claiming that its “TOPIOM” rowing machine infringed the copyright of its WaterRower design. The defendant sought to strike out the claim of copyright infringement on the basis that no copyright could subsist in the design of the WaterRower.
The case was heard by Mr David Stone sitting as a Deputy High Court judge. Jacqueline Reid appeared for the claimant, and Jonathan Moss and Kendal Watkinson for the defendants.
‘Beautiful Enough as Furniture’
The original WaterRower, a water resistance rowing machine, was handmade from wood by American rower and boat builder John Duke in 1985, said to be inspired by wooden shells designed by other rowing equipment designers and the aesthetics of Shaker furniture design. The WaterRower, now in its eighth iteration, had been recognised as an “iconic design”, having been featured in publications by the Museum of Modern Art and put on display in the Design Museum in London.
It was admitted by the defendant, a company incorporated in Hong Kong, that its machine was a replica of the WaterRower, which it advertised on Amazon with the slogan “Beautiful Enough as Furniture”. However, counsel argued that while the WaterRower had aesthetic appeal, this was not enough to make it artistic in the manner described in the House of Lords case of George Hensher Ltd v Restawile Upholstery Ltd (1976).
It was further argued that the machine was not a work of craftsmanship, as while the first one may have been built by Mr Duke’s own hand the modern WaterRower was mainly based on technical consideration with the only free choice remaining being the choice of wood used. Without artistry or craftsmanship, there could not be the interplay expected of a work of artistic craftsmanship and therefore the claimant would fail.
Not a ‘jobbing tradesman’
In his decision, Judge Stone said of the Hensher decision: “Lords Reid, Morris and Kilbrandon all held that the intention of the creator was at least relevant to whether or not a work of craftsmanship is artistic. Indeed, Lord Kilbrandon held that it was the ‘primary test’. In this case, there is already some evidence as to Mr Duke’s artistic intention, and the Claimant has sought permission to adduce a further witness statement from Mr Duke for the purposes of the trial.”
He continued: “The evidence before me is that Mr Duke intended to recreate the sparse elegance of a Shaker design and to create a rowing machine in which the user has ‘a welcoming emotional connection, as they would with a piece of art or furniture’. This evidence is, in my judgment, sufficient to avoid a strike out. There is in any event likely to be more to come.”
On whether Mr Duke could be considered a craftsman, Judge Stone said: “There is evidence that Mr Duke is a craftsman – he studied naval architecture and built boats. Mr Duke has produced a high quality product, which was initially made entirely by hand, and continues to be made in part by hand. He has pride in his work. He is not a slavish copier or a jobbing tradesman.”
He added: “It matters not that the creation of the WaterRower is now outsourced to others – there is nothing in the authorities that requires works of artistic craftsmanship to be the work of a single person, and art practice for centuries, and, more recently, craft practice, have both involved heavy aspects of outsourcing of the actual manufacture.”
Judge Stone concluded, addressing relevant EU law: “The interaction between the CDPA and [EU cases referred to by the defendant] is not a simple one. It is one which would appear to need to be resolved at some stage, by Parliament or the higher courts. But the inconsistencies on which counsel for the Defendant relied do not arise on the facts of this case as they are currently before the Court. If the evidence at trial changes that, then the Enterprise Judge who hears the trial can make all the necessary findings of fact, and the Court of Appeal will, if permission is given, determine the position in light of proper findings of fact. In my judgment, that is the appropriate course in this case.”
The application to strike out the claim was therefore rejected, as was an application for a summary judgment on the defendant’s counterclaim.
